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U.S. Supreme Court Perfectly Happy Letting the Miiltary Discriminate


The White House. Congress. And now the U.S. Supreme Court! Every single branch of government remains perfectly complicit with the U.S. military kicking out gay folks!

Thousands of court cases are appealed to the U.S. Supreme Court, but the justices hear fewer than 100 every year. On the list of Go Aways? A case challenging the legality of Don’t Ask Don’t Tell.

Some 12 gay servicemembers who were kicked out sued Defense Secretary Robert Gates to have the law overturned, but so far no court has sided with them; the most recent decision, from a federal appeals court in Boston, threw the case out, which prompted plaintiff James E. Pietrangelo II to appeal to the Supreme Court. All along, meanwhile, the Obama administration has been supporting lower court rulings that held the policy was A-OK.

The Court’s decision not to hear the case isn’t surprising; it regularly defers military matters to, well, the military and our commander-in-chief. And now that a courtroom methodology to repeat DADT has failed? Our only hope is to get Barack Obama (who wishes you a happy pride!) or Congress to do the right thing.

Thank goodness Obama is a friend to gays, right?

By:           editor editor
On:           Jun 8, 2009
Tagged: , , , ,

    • Cheesehead

      David Boies and Ted Olsen, good luck with your Prop 8 challenge and this Supreme Court!

      Jun 8, 2009 at 12:56 pm · @ReplyReply to this comment ·
    • TJ

      Normally OK with court reviews of discriminatory policies, but this is a definite exception: trust me, you DO NOT want the court to review DADT. The court’s history with discriminatory military policy isn’t terribly liberal, and the one case everyone remembers that had SOMETHING to do with the military (US v. Virginia) was really about a private institution. Almost all jurisprudence regarding civil rights has a military exemption to it… we don’t want gay rights to end up as one of those exceptions set by the nation’s highest court.

      Jun 8, 2009 at 12:58 pm · @ReplyReply to this comment ·
    • OldFAQ

      The SCOTUS decision not to review the lower court ruling doesn’t surprise me. Sadly, the administration’s response to the SCOTUS decision doesn’t surprise me either. “In court papers, the administration said the appeals court ruled correctly in this case when it found that “don’t ask, don’t tell” is “rationally related to the government’s legitimate interest in military discipline and cohesion.” So, how long will we have to endure “rationally related” discrimination?

      Jun 8, 2009 at 1:13 pm · @ReplyReply to this comment ·
    • Erik

      @TJ: Very well put. The Supreme Court historically dislikes telling the military what to do in any sense, and this Court is no different. Add to this the facts that the challenge was on weak legal grounds to begin with and that no lower court had ruled in favor of the service members, meaning there was no reason for the court to hear the case unless it was to overturn it, and you could have almost guaranteed that the case would be denied a hearing.

      Jun 8, 2009 at 1:27 pm · @ReplyReply to this comment ·
    • Cam

      The Court specifically said that they wanted to defer to Congress. Funny, they didn’t do that on any of the civil rights cases.

      Jun 8, 2009 at 1:32 pm · @ReplyReply to this comment ·
    • InExile

      I can’t believe our President has not spoken out against this ruling! He said we have “a friend” in the White House?

      Jun 8, 2009 at 1:33 pm · @ReplyReply to this comment ·
    • Nikki

      What the Queerty version of the story neglects to mention is that it was OBAMA who told the SCOTUS to reject the case. The ire and focus should be on OBAMA, not the SCOTUS…

      The news story actually lead off with this first sentence:

      “WASHINGTON – The Supreme Court has turned down a challenge to the Pentagon policy forbidding gays and lesbians from serving openly in the military, granting a request by the Obama administration.”


      Jun 8, 2009 at 1:59 pm · @ReplyReply to this comment ·
    • Dawgson

      I would be in shock, except I think I’m too jaded at this point. I guess we have to hope and trust that justice will prevail and maybe the Obama administration doesn’t hate us?

      Jun 8, 2009 at 2:43 pm · @ReplyReply to this comment ·
    • Dennis

      Strategy people, do you understand the concept of strategy? We would LOSE in front of this reactionary, conservative court and have things set back even further! Pick our battles, be smart. We stand a better chance of getting Congress to repeal the law than depend on this court to advocate for us…If Congress hasn’t acted, and in a few years we have more Obama appointees, THEN would be the time to go before the Supreme Court. Now is not the right time to take this to this court anyway.

      Jun 8, 2009 at 2:58 pm · @ReplyReply to this comment ·
    • Prof. Donald Gaudard
      Prof. Donald Gaudard

      There is a legal maxim: Bad facts make bad law. This case was bad. We are very lucky that Obama encouraged the Supreme Court not to take the DADT case (Cook v. Gates). If you want to appeal a DADT case to the Supreme Court (why I can’t imagine), then wait for the trial of Witt v. Air Force in the Washington federal court, and if there is a negative ruling, then appeal that case. The facts of the case are much better for gays.

      Believe me, I am no Obama defender; in fact, I daily send him e-mails to WhiteHouse.gov to complain about his inaction and his inability to keep his promises, but in this case he did us a favor. Don

      Jun 8, 2009 at 3:16 pm · @ReplyReply to this comment ·
    • earle dardar
      earle dardar

      the supreme court sided with us in lawrence vs texas, seems to me that are a much better friend to our community than the one that uses us only for fund raising.

      Jun 8, 2009 at 4:34 pm · @ReplyReply to this comment ·
    • emma

      Queerty, you should probably be worried that your reporting on this has apparently confused some people (see InExile) into thinking the Court has actually ruled DADT constitutional. That’s not what happened.

      Further, this would seem to be pertinent information:

      In the “don’t ask, don’t tell” case, the Supreme Court sided with the Obama administration, which had urged the justices not to hear the appeal against the policy, even though Obama is on record as opposing it. The court thus spared the administration from having to defend in court a policy that the president eventually wants to abolish pending a review by the Pentagon.

      Jun 8, 2009 at 4:41 pm · @ReplyReply to this comment ·
    • Cam

      @Nikki: you said “What the Queerty version of the story neglects to mention is that it was OBAMA who told the SCOTUS to reject the case. The ire and focus should be on OBAMA, not the SCOTUS…”

      the govt. was the defendent in the case, the defendent always asks the court not to review if they didn’t win the last round.

      The Supremem Court is independent and can do what they want. Be pissed at both.

      Jun 8, 2009 at 5:01 pm · @ReplyReply to this comment ·
    • Cam

      Oh, and one other thing, since there is no proof that gays in the military cause disnunity could the court please show us where they came to that conclusion that the Military argument should be taken at face value?

      Jun 8, 2009 at 5:03 pm · @ReplyReply to this comment ·
    • Michael @ LeonardMatlovich.com
      Michael @ LeonardMatlovich.com

      At first, I swallowed the “it’s a good thing” analysis, but EVEN IF THE COURT had upheld DADT…as they probably would have [tho it could have taken them months to "decide"]…Congress would have still had the power to repeal it.

      I don’t know if it was a “damned if we do, damned if we don’t” conundrum but I DO know that, now, Obama has undercut his ability to keep his own promise to convince Congress SOMEDAY to repeal it because HE, via HIS Justice Dept., is now on record as DEFENDING the law for the very same reason the homohaters made up to pass it in the first place:

      AP QUOTE: “In court papers, the administration said the appeals court ruled correctly in this case when it found that ‘don’t ask, don’t tell’ is ‘rationally related to the government’s legitimate interest in military discipline and cohesion’.”

      What’s he got left to say to Congress, “Ooops, I really didn’t mean it”?

      The inmates are running the asylum.

      Jun 8, 2009 at 5:44 pm · @ReplyReply to this comment ·
    • Andrew

      Had SCOTUS granted cert, it would not have ruled on the constitutionality of DADT. Rather, if it found in favor of the appellants (the plaintiffs/servicemembers), it would have sent the case back down to the district court. I haven’t read any amicus (not sure what was filed yet), but there’s a good chance the administration was not being “evil” here. Bear with me…. They may have been strategic in avoiding being forced to defend the policy before SCOTUS. As it stands now, the issue lies squarely in the lap of the Administration and Congress (where a bill is pending to repeal DADT). This is where DADT should be dealt with. We need to put pressure on the Armed Services Committee to allow open hearings on the issue and move H.R. 1283 toward passage. The bill has a lot of support in the House (about 150 co-sponsors) and recent polling is in favor of repealing DADT. Congress needs to pass this and put it to the President for signature. IMHO.

      Jun 8, 2009 at 5:46 pm · @ReplyReply to this comment ·
    • Bill Perdue
      Bill Perdue

      @Dennis: wants us to be aware of the realities of ‘higher’ strategic thinking, aka, how to dress elegantly and act gracefully as we get run over by the Obamabus again.

      His half-baked version of events, which says that Obama did GLBT servicemembers a favor retaining DADT with all it bigoted discrimination and it’s built in approval of violence against GLBT solders is ludicrous. It’s the same kind of preposterous stupidity that informs us that Clinton did our brothers and sisters in the military a favor when he codified military bigotry into law as DADT. Or that when Clinton rammed DOMA through Congress he did it to prevent something even worse like… maybe a pair of giant meteors simultaneously striking West Hollywood and the Village or a federal constitutional DOMA (which wasn’t proposed until several years later).

      Dennis, on every question, is an abject apologist for Obama. There is no betrayal that Obama and the Democrats could commit, with the gleeful Republican support, that Dennis won’t forgive or attempt to explain away.

      And that’s OK but please don’t tell us Obama is helping us when it’s patently clear that he’s driving the bus.

      Jun 8, 2009 at 6:01 pm · @ReplyReply to this comment ·
    • galefan2004

      Honestly, I don’t like the DADT policy, but its not that easy to just get rid of it. You have to realize that if you get rid of DADT then you go back to throwing gays out of the military just for being gay but you allow investigations into their personal life to find out if they are gay or not. The only way you can really change DADT is to pass another law through congress that blocks gays from being thrown out of the military based on discriminatory practices. Obama doesn’t really have the power to change it altogether on his own, so maybe the step should be to lobby congress to get the process on a new bill started to end discrimination in the military instead of waiting for Obama to act and blaming him when he doesn’t.

      Jun 8, 2009 at 6:47 pm · @ReplyReply to this comment ·
    • Michael @ LeonardMatlovich.com
      Michael @ LeonardMatlovich.com


      REPEAT: the very “solution you promote, as did Candidate Obama, convincing Congress to repeal DADT, has just been castrated by his representative in the Justice Department.

      And, to be precise, a bill to repeal only exists so far in one side of Congress, where it is some 86 votes short of passage even IF the 77-yr. old homophobic chair of the Armed Services Committee, Ike Skelton, would even let his committee discuss letting it onto the floor for a vote.

      Note, he’s officially “open to it” but HE was the sponsor of the original DADT bill in the House all the while denying disingenously that it didn’t ban “status” only “conduct” when it actually banned both.

      Again, Obama has just told Skelton that his excuses for sponsoring DADT in 1993 are STILL valid.

      Jun 8, 2009 at 6:57 pm · @ReplyReply to this comment ·
    • Nikki


      “Obama doesn’t really have the power to change it altogether on his own, so maybe the step should be to lobby congress to get the process on a new bill started to end discrimination in the military instead of waiting for Obama to act and blaming him when he doesn’t.”

      Yes, Obama DOES have the power. In fact, a committee of military law experts just last month proposed that, not only does Obama have the power, it is he who must act first in exerting an executive order in order to push Congress toward the repeal of DADT, for Congress is unlikely to act on their own–at least not any time soon. Here is an excerpt from the 30-page report, “How to End “Don’t Ask, Don’t Tell;” A Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment:


      “1) The executive branch has the authority to suspend homosexual conduct discharges without legislative action.

      The process of lifting the ban on service by openly gay personnel is both political and military in nature. While research shows that the planned policy change does not pose an
      unmanageable risk to the military, how the transition is executed politically can affect how smoothly the change is implemented. The President has the authority to issue an
      executive order halting the operation of “don’t ask, don’t tell.” Under 10 U.S.C. § 12305 (“Authority of the President to Suspend Certain Laws Relating to Promotion, Retirement,
      and Separation”), military members during any period of national emergency in which members of a reserve component are serving involuntarily on active duty. We believe that issuing such
      an order would be beneficial to military readiness, as it would minimize the chances of replaying a debate that is already largely settled but could still inflame the passions of
      some in the military. Once gay people are officially serving openly in the military, it will become clear to those with concerns about the policy change that service by openly gay
      personnel does not compromise unit cohesion, recruiting, retention or morale. This in turn will make it easier to secure the passage of the Military Readiness Enhancement Act (MREA) in Congress, which would repeal “don’t ask, don’t tell.” While it would be optimal to see lawmakers embrace repeal by passing MREA, it may not be politically feasible to do so, despite overwhelming public support and Democratic control of
      Congress. Conservative Democrats in Congress may oppose MREA, and the White House may not wish to expend the political capital necessary to overcome their resistance. The executive option may end up costing the President less in political capital
      than the effort needed to push repeal through Congress. And it could help avoid the emergence of split military leadership which could make the transition bumpier than it has to be.

      2) Legislative action is still required to permanently remove “don’t ask, don’t tell.”

      As stated in #1, above, pushing MREA through Congress may best be done after an executive order first halts discharges for homosexual conduct.

      Jun 8, 2009 at 7:51 pm · @ReplyReply to this comment ·
    • Michael @ LeonardMatlovich.com
      Michael @ LeonardMatlovich.com

      And before one of the apologists crawls in with another distortion, denial of the facts about stop-loss:

      As Nikki noted, Stop-Loss” — under 10 U.S.C. § 12305 et al. — as passed by Congress is explicitly for the purpose of furthering our national defense in times of national emergency, which, as defined by CONGRESS, is NOW and applies to ANYONE the President SAYS it does.

      Contrary to those who scream “the sky would fall,” a freeze now would only be as “controversial” as the President allowed it to be. He could quickly smother any fire IF he framed the narrative forcefully, referencing the long HISTORY of stop-loss of gays, in the name of strengthening the fight against terrorism when enlistment & reenlistment rates are so low that CONVICTED FELONS are getting waivers and NON-AMERICANS are being offered a chance of citizenship in exchange for enlisting, the majority of the public, including the majority of “conservatives” and “Republicans,” which ALREADY opposes DADT would tell any of their reps in Congress who dared object to STFU!

      Further, for more than half-a-century, stop-loss has REPEATEDLY been applied to gays & NOT just those in the process of being discharged…. WHENEVER the military has gotten to a point where they, as Candidate Obama phrased it when he promised to fight for DADT repeal…”need all hands on deck”…THEY have ignored the ban both when it was only “policy” and after it became “law.”

      Based on research by Allen Berube for “Coming Out Under Fire,” in World War II it once took an extreme form when “the adjutant general ordered the commanding general of the West Coast Air Corps Training Center in California to review the cases of some men ALREADY CONVICTED OF SODOMY “to determine their respective availability for military service” with “the view of conserving all available manpower for service in the Army.” He canceled the men’s dishonorable discharges and maDE them eligible for reassignment AFTER COMPLETING THEIR PRISON SENTENCES.

      In 1945, facing manpower shortages during the final European offensive in Europe, Secty of War, Harry Stimson, ordered a review of all gay discharges and ordered commanders to “salvage” homosexual soldiers for service whenever necessary.

      The number of men discharged for being gay during WWII is only in the low thousands out of 16 MILLION men who served. That’s A LOT of “looking the other way.”

      Before and after both the Korean and Vietnam wars, gay discharge #s revealed a stop-loss pattern.

      1950, during Korean War – 483 discharges.
      1953, when the Armistice was signed – 1353 discharges.

      1966 – the Navy alone discharged 1708 gays.
      1970 – when the US was deep in Vietnam, they only discharged 461.

      During the first Gulf War, a Pentagon spokesman said in relation to gay discharges, “Any administrative procedure is dependent on operational considerations of the unit that would administer such proceedings.” [And they will do whatever the President tells them to, formally or informally.]

      After 9/11, President Bush signed executive Order #13223 that authorized the individual service branches to initiate a stop-loss which allowed them “to suspend certain laws relating to promotion, involuntary retirement, and separation” of military personnel.

      In the “Army Commander’s Handbook,” updated in 1999 and still in effect, under the criterion of “homosexuality”: “if discharge is not requested prior to the unit’s receipt of alert notification, discharge isn’t authorized. Member will enter active duty with the unit.”

      In 2005, a military spokesperson acknowledged they were sending openly gay service members into combat in Iraq.

      Congressionally mandated legal authority, historical precedent more than half-a-century long, majority public opposition to DADT, and the documentable need of EVERY servicemember in sustaining the nation’s security when we are at war gives President Obama every justification.

      All he NEEDS is the will.

      Jun 8, 2009 at 8:12 pm · @ReplyReply to this comment ·
    • Nikki

      @Michael @ LeonardMatlovich.com:

      Thank you!! Succinctly yet powerfully put. End of !$#! discussion.

      Jun 8, 2009 at 9:21 pm · @ReplyReply to this comment ·
    • galefan2004


      As I said, Obama does NOT have the power to remove DADT on his own. Here is what a stop loss will do. Lets say Obama issues a stop loss. He suddenly just became an activist president that ended DADT without even consulting with congress. Now, the problem with that is that congress doesn’t like being stepped over to make a political point. Therefore, while Obama can end the discharges, doing so puts him at risk of pissing off congress (even though they are mostly his own party that doesn’t mean they agree with him all the time…democrats don’t always agree with each other I know its a shocker). So lets stay he puts in a stop loss and he pisses off congress by doing so, then he has just destroyed his chance of working on pretty much every other gay issue on his agenda (gay marriage and gay discrimination). There are really two ways to look at it, either Obama is being cautious because he knows how to do things a little better than the pundits (imagine that…that is probably why we elected him) or he doesn’t give a rats ass about gay rights and he just said he did to get elected. Either which way, we are pretty much screwed for the next four years, so sit back and enjoy the ride. Putting Obama to the grind stone isn’t going to do shit, because as any political strategist will tell you, its about 100x easier to get elected the second time around as it was the first, and Obama really doesn’t need to carry the gay vote to win the election. We don’t matter as much as some want to think we do. We are still a very small minority albeit it a very vocal small minority.

      Jun 8, 2009 at 9:54 pm · @ReplyReply to this comment ·
    • Nikki


      Darlin, nice try but unconvincing. Call me crazy, but I put a whole lot more stock in the opinion of a committee of MILITARY LAW EXPERTS than I put in you. Sorry. Your feeble run-on paragraph pales in comparison to the highly articulate and legally competent 30-page report published by the Palm Center. AWOA, don’t give up your day job…

      Jun 8, 2009 at 10:51 pm · @ReplyReply to this comment ·
    • Michael @ LeonardMatlovich.com
      Michael @ LeonardMatlovich.com


      Obviously, you’re one of those automatons [Obamatons?] who stops reading at the first word you disagree with and like a howler monkey starts screeching all over again.

      Had you read even one-third of what I wrote [and TRUST ME I'm not ego-involved because I am merely summarizing the expert research of others] or what Nikki wrote you would not have just posted what you did without NEW counterpoints to attempt to dispute us.

      1. we are NOT talking about Obama “remov[ing] DADT on his own” or “end[ing] DADT.” Obama would NOT be “stepping over” them. As the director of the Palm Center study, co-authored by three of the top experts on military law in our community, all of whom are nationally respected law professors or practitioners, and military veterans, has since written:

      “CONGRESS HAS GIVEN THE PRESIDENT AUTHORITY to sign such an order by law. THERE IS NO END-RUN INVOLVED. Some of those who have critiqued our study do not seem to grasp THE DIFFERENCE BETWEEN SUSPENDING THE LAW AND SUSPENDING DISCHARGES.”

      2. Once again, and I’m typing very slowly to help you understand:

      Contrary to those who scream “the sky would fall,” or “he’d piss off Congress,” a freeze now would only be as “controversial” as the President allowed it to be. He could quickly smother any flames IF he framed the narrative forcefully, referencing the long HISTORY of stop-loss of gays, in the name of strengthening the fight against terrorism when enlistment & reenlistment rates are so low that CONVICTED FELONS are getting waivers and NON-AMERICANS are being offered a chance of citizenship in exchange for enlisting.

      Then, the majority of the public, including the majority of “conservatives” and “Republicans,” which ALREADY opposes DADT, after a well-articulated explanation of the need to do this in the interest of their and their families SECURITY, would tell any of their reps in Congress who were pissed off and DARED to sit down and STFU!

      Jun 8, 2009 at 10:52 pm · @ReplyReply to this comment ·
    • Dennis

      @Bill Perdue:
      Well, since you said yesterday that Obama is “Nixon Redux”, clearly you are back to sniffing glue again, dear…it’s no good for you.

      And there are, in fact, betrayals I will not tolerate, but to try and have a reasonable dialog with you is impossible…I could just as easily say that you will not STFU until “Obama quits every other obligation he has, and agrees to devote himself 24/7 to YOUR personal version of how the world should work”, since you seem to have some strong (deranged) belief that you have all the correct answers to the world’s problems. Why aren’t you President then(?), clearly it is selfish of you to deny our country your brilliant and practical solutions to all the worlds ills…

      Fuck off, #1 wingnut. (and on Queerty, that’s no small accomplishment…did the glue sniffing help you snatch that honor?)

      Jun 9, 2009 at 1:48 am · @ReplyReply to this comment ·
    • Andrew

      @Michael @ LeonardMatlovich.com:
      Michael: All I said in my post was that SCOTUS would not have reached the constitutionality of DADT (a fact) and that we should step up pressure on Congress and Obama (my opinion). Not sure what you find so offensive about suggesting we continue putting pressure on Congress and the President. But anyway, we likely agree on 90% around this issue. I’ve posted elsewhere on Queerty outlining the three avenues of authority Obama has to stop enforcing DADT. But since he hasn’t used that authority, all we can do is step up the pressure and make sure our voices are heard.

      P.S. Don’t presume that you are the only person who knows the history of DADT and discrimination. As a lawyer and activist approaching 50, I’ve been around a while and have a decent understanding of the issue. I don’t need you or anyone else implying I am an “apologist” or copping some bitchy tone just because I post something not completely in line with your opinion.

      Jun 9, 2009 at 9:15 am · @ReplyReply to this comment ·
    • Bill Perdue
      Bill Perdue

      @Dennis: is as usual short on proof and offers no facts to back up his offensive notion that a stab in the back for GI’s facing discrimination, loss of benefits, harassment and occasional violence is somehow a good thing.

      You have to wonder what Dennis has against GLBT soldiers and for that matter all the GIs sent to the killing fields of Iraq and Afghanistan. He disapproves of challenges to DADT and approves of Obama’s Nixonesque decision to enlarge and expand the war in Southwest Asia. 5011 GI’s have been killed in Iraq and Afghanistan and a further 15,000 plus have sustained wounds that made them unfit for duty. The US military command in Iraq admits only 186 suicides but the numbers are probably much larger and add up to thousands if you count returning vets unable to cope with wounds including PTSD.


      How many more GIs and innocent civilians will have to die before Obama and the US military command are defeated as ignominiously as they and Nixon were in Laos, Cambodia and Vietnam. Hopefully the combined efforts of the Iraqi oil workers union, the US civilian and GI antiwar movements and the determined resistance of the Iraqi and Afghan people can end it sooner rather than later.

      In the meantime we should do everything we can to discourage LGBT youth from enlisting to murder muslims so Chevron-Texaco and Haliburton can get rich and we should demand that Obama order courts martial for all officers and others charged with hate crimes and especially rape of female soldiers.

      All Dennis can contribute are a few more lame personal attacks.

      Jun 9, 2009 at 10:09 am · @ReplyReply to this comment ·
    • eric lloyd elder
      eric lloyd elder

      im a friend of thomas ed morrell ,that bastard zack wamps opponent.i was a friend to jennifer jennings,my X-adonis.
      i am gods friend.i am brad pitts friend,im allanis morrsettes friend.i was assaulted by blacks private jai system.i want to join a racist support group but theres not one in chattanooga or rossville. i want a vanila coke, i want to love more girls like jennifer and legally marry.we need more racist support groups here and i want love biofeedback,also i love fight club those directors writers and makeupartists are like gods to me
      i love my self shes so adorable and troubles me a bit
      i need to get off my ass and read the newspapers, i have no goals other than getting married, im anti-sematic and i want to live, i water the ocean

      Sep 18, 2009 at 11:18 am · @ReplyReply to this comment ·

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